A Second Look at Qualified Immunity


Introduction

This article continues the qualified immunity discussion from October 30th by examining the ‘clearly established’ prong of qualified immunity against a use of force case. Overall, the clearly established prong suffocates public official liability for injured parties seeking redress under 42 U.S.C. § 1983. The United States Supreme Court (“the Court”) should adopt Lee v. Ferraro.[1] The adopted holding would allow plaintiffs to assert a narrow exception that a right is ‘clearly established’ by showing that a public official’s conduct, which so obviously violates the constitution, prior case law is unnecessary. 

Case at Bar

Consider the following: On June 24, 2010, Ferndale Police Officer Kenneth Jaklic stopped Laszlo Latits for turning the wrong way on a divided boulevard. [2] Jaklic approached the car with a flashlight. About eight seconds later, Jaklic withdrew his gun. The police officer testified that he saw bags in the car and thought they contained drugs. The dashboard camera shows the officer shining his flashlight into the car and raising his gun to Latits’s head at point-blank range. Latits then drove away, and the police pursued. Next, Officer Jaklic moved his car slowly into Latits’s car path in a parking lot. Dashcam shows Latits steering away from Jacklic to avoid colliding. Jaklic then broadcast that Latits “tried to ram my vehicle.” Another sought clarification as to whether Latits rammed the patrol car. Jaklic responded: “He tried to.” At his deposition, Officer Jaklic admitted that Latits steered away to avoid hitting his patrol car.[3]

The district court believed a reasonable jury could confirm via dashcam video that another officer, Lowell Phillips, knew Jaklic’s statement was false. Latits then fled the parking lot. No pedestrians or other cars are visible from the footage. After, Officer Andrew Wurm struck Latits’s vehicle twice while on the highway. An officer is heard from video footage stating that Latits rammed them several times. However, the dashcam video proves Latits did not ram any patrol cars.[4] Phillips then repeatedly rammed Latits’s car—in violation of department policy and a direct order not to use this maneuver—and eventually drove Latits off the road. Phillips then jumped out of his car, ran toward Latits, and shot him three times in the chest, killing him. Seven shell casings were recovered from the scene matching Officer Phillips’s gun. Dashcam from four patrol cars shows Phillips was not endangered. Ferndale Police Department subsequently terminated Phillips for this conduct.[5]

The plaintiff sued under 42 U.S.C. § 1983, alleging that Phillips violated Latits’s clearly established Fourth Amendment rights by using deadly force to terminate the chase. The Sixth Circuit held that Phillips’s use of deadly force on fleeing Latits was objectively unreasonable and violated the Fourth Amendment. Still, Officer Phillips is entitled to qualified immunity because case law was not clearly established.

42 U.S.C. § 1983

Section 1983 provides a civil remedy for a plaintiff who has suffered a constitutional violation at the hands of state or local officials acting under color of law.

Qualified Immunity

The doctrine of qualified immunity protects police officers from liability for civil damages afforded in § 1983 unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right and (2) that the right was clearly established at the time of the challenged conduct.[6] Courts may consider those two inquiries in either order.[7] As to public policy, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.[8] Qualified immunity seeks to balance two interests: (1) the need to hold officials accountable when they exercise power irresponsibly and (2) the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.[9]

Use of Force

In Tennessee v. Garner, the Court held that where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force.[10] Under the Sixth Circuit, deadly force is justified against “a driver who objectively appears ready to drive into an officer or bystander with his car,” but generally not “once the car moves away, leaving the officer and bystanders in a position of safety,” unless “the officer’s prior interactions with the driver suggest that the driver will continue to endanger others with his car.”[15]

In Graham v. Connor, the Court held that the excessive force inquiry “requires careful attention to the facts and circumstances of each particular case.” The probe evaluates “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[11] Under use of force, ‘reasonableness’ considers the officer’s on-the-spot judgment and avoids “20/20 hindsight vision.”[12] The “calculus of reasonableness” contemplates an officer’s split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary for a particular situation.”[13] Though rapid evolvement does not, by itself, permit officers to use deadly force; rather, qualified immunity is available in the face of serious physical threats to themselves and others.[14]

Clearly Established Gone Wrong

Meaning

A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what she is doing violates that right.[16] In Justice Sotomayor’s words, qualified immunity “renders the protections” of the Constitution “hollow.”[17] The Court’s definition of “clearly established” law has narrowed significantly over three decades. Historically, a plaintiff could defeat qualified immunity by showing an obvious constitutional violation. However, the Court’s subsequent decisions have required that plaintiffs point to “controlling authority in their jurisdiction” or a “consensus of cases of persuasive authority.”[18] Recent decisions show the Court suggesting that only their decisions can clearly establish the law.[19] This prevents lower federal courts from clearly establishing law and leaves citizens relying on the Court to set new clearly established case law.

Orderless Analysis

In 2009, Pearson v. Callahan, the Court held that lower courts could grant qualified immunity without first ruling on the constitutionality of a public official’s behavior.[20] This maneuver prevents courts from analyzing the constitutionality of a public official’s conduct and simply relying on the lack of case law supporting a denial of qualified immunity. If constitutional violations are not analyzed, the law is never clearly established. Thus, rendering the Constitution “hollow.” For Latits, the circuit court analyzed the constitutional prong because the case involved a Graham analysis (discussed below). Importantly, not all qualified immunity cases involve use of force. Thus, the order of analysis matters, but cases often fail under the second prong.

Lee v. Ferraro

By adopting, Lee v. Ferraro, Latits’s wife, as the plaintiff, could assert that Latits’s Fourth Amendment right against deadly force is ‘clearly established’ by showing that Phillips’s conduct so obviously violated the constitution prior case law is unnecessary.[21] Phillips testified that after colliding with Officer Jaklic’s car, Latits looked directly back at him, revved his engine, and moved the car towards Phillips, at which time Phillips fired his weapon—7 times—killing Latits. However, video evidence contradicts this testimony. Also, Jaklic falsely informed officers that Latits tried to ram his patrol car, confirmed by his deposition testimony and dashcam video. Dashcam video provides no evidence that Latits reversed his car or tried to hit Phillips or any other officer or bystander, leaving the officer and bystanders in a position of safety.

Graham Factors

First, Officer Phillips knew from Officer Jaklic’s broadcast that Latits was suspected of possessing narcotics—a nonviolent crime. Second, Phillips (1) saw Latits steer away from Jaklic’s car, (2) knew Latits never rammed Officer Wurm’s car, (3) violated department policy by passing Wurm and Jaklic in pursuit, (4) observed only one parked car with no bystanders around throughout the chase, and (5) rammed Latits off the road after Latits straightened his car from Wurm’s collision—also in violation of department policy and a direct order. Finally, it is undisputed that Latits was fleeing to avoid arrest. These factors are non-exclusive.

In considering due deference to the officers, here, Officer Phillips’s life was never in imminent danger, and, under the objective analysis of Latits’s slow near collision with Officer Jaklic’s car, no other officer’s life was endangered in the moments before Phillips fired shots into Latits. Thus, considering the totality of the circumstances in the light most favorable to the Plaintiff, Latits did not present an imminent or ongoing danger. Therefore, the shooting was not objectively reasonable. Like the court, Officer Phillip’s use of deadly force was objectively unreasonable and in violation of Latits’s constitutional rights. The policy violations are immaterial when determining constitutionality, but go toward qualified immunity’s reasonableness.

Conclusion

In sum, Officer Phillips violated Latits’s Fourth Amendment rights. Under Lee v. Ferraro, the law is clearly established because Phillips’s conduct so obviously violated the Fourth Amendment that the conduct’s unlawfulness was readily apparent to the official, notwithstanding the lack of case law. Additionally, Phillips is incompetent because he violated department policy twice and a direct order, by passing other officers in the chase and providing false testimony proved by contradicting dashcam video. Phillips knowingly violated Latits’s constitutional rights by shooting Latits in the chest three times for a nonviolent offense. Phillips was held accountable for exercising his power irresponsibly because he was terminated but escaped liability because the Court’s definition of clearly established. Therefore, Phillips should be denied qualified immunity under Lee v. Ferraro. Doing so will increase clearly established case law, “protect all but the plainly incompetent or those who knowingly violate the law,” and place § 1983 claims closer to its original intent.

– D. Horton



[1] 284 F.3d 1188, 1199 (11th Cir. 2002).

[2] Latits v. Phillips, 878 F.3d 541, 545 (6th Cir. 2017)

[3] Id. at 545.

[4] Id.

[5] Id., at 546. Ferndale Chief of Police cited the following violations: Phillips engaged as the third police car without permission, passed the secondary and primary vehicles, used a PIT maneuver in violation of a direct order, and approached Latits’s car instead of taking a tactical position using his vehicle as cover.

[6] Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (U.S. Attorney General Ashcroft granted qualified immunity for his involvement in the detention of a Muslim U.S. citizen after the 9/11 attacks). See also Elliot-Park v. Manglona, 592 F.3d 1003, 1006 (9th Cir. 2010) (stating police are entitled to qualified immunity).

[7] Pearson v. Callahan, 555 U.S. 223, 236 (2009).

[8] Malley v. Briggs, 475 U.S. 335, 341 (1986).

[9] Pearson v. Callahan, 555 U.S. 223, 231 (2009), overruled in part on other grounds by Pearson, 555 U.S. at 236.

[10] Tennessee v. Garner, 471 U.S. 1, 11 (1985). See also Ciminillo v. Streicher, 434 F.3d 461, 468 (6th Cir. 2006) (stating that a person has a “right not to be shot unless they are perceived as posing a threat to officers or others”).

[11] 490 U. S. 386, 396 (1989).

[12] Id.

[13] Id., at 397.

[14] Mullins v. Cyranek, 805 F.3d 760, 766-67 (6th Cir. 2015).

[15] Smith v. Cupp, 430 F.3d 766, 775 (6th Cir. 2005).

[16] Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (Sotomayor, J., dissenting)

[17] Id. at 316.

[18] Wilson v. Layne, 526 U.S. 603, 617 (1999).

[19] See Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100 MINN. L. REV. HEADNOTES 62, 70–71 (2016) (describing this shift in the Supreme Court’s qualified immunity decisions in recent years).

[20] Pearson, 555 U.S. at 223–24.

[21] 284 F.3d 1188, 1199 (11th Cir. 2002).

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